From: Fabrizio Evola [Email him]
I, like the overwhelming majority of VDARE readers, was rather disappointed by the Supreme Court's 5-4 decision in Texas v. Biden that gave the Biden Administration the power to end the “Remain in Mexico“ policy. However, after reading the opinion [PDF], and keeping in mind how Chief Justice Roberts thinks, it appears that this decision is not exactly a resounding victory for Biden, Garland, and Mayorkas.
The decision does give the Biden Administration the authority to end MPP, but only in theory. In fact, the case was remanded to the lower courts to determine whether the Administration followed the requirements of the Administrative Procedure Act (APA). In order to end it, the Administration is going to have to demonstrate that their decision to end MPP was not “arbitrary and capricious.“ That is going to be exceedingly difficult to do, especially considering the conservative nature of the Judges in the Fifth Circuit. As Justice Alito's dissenting opinion illustrates, there are only three options under current immigration law in dealing with illegal migrants. The government can detain them, make them wait in Mexico, or release them on a “case-by-case“ basis. Releasing hundreds of thousands of migrants is simply not an option under the law. So, without detention space for these migrants, the only other option is to reinstate the MPP. I would suspect that there is a very good chance that the lower courts will force Biden to take this option.
In summation, Chief Justice Roberts has punted the tough decision to the lower courts. He gets a nice media headline saying he ruled for Biden, thereby demonstrating that the Court is not unduly partisan, in the wake of the Dobbs decision. At the same time, someone else will force the Biden Administration to stay faithful to current immigration law. The Chief Justice did something similar with regards to DACA, when he ruled that the then Trump Administration did not properly follow the APA when terminating the program. A lower court in the Fifth Circuit later ended the program on other legal grounds. I think the same thing will happen here.
See previous letters from the same reader.